Scenarios for the Venezuela investigation at the International Criminal Court: What to expect during 2022?

The year 2021 began with the news that the Assembly of States Parties to the Rome Statute had elected British lawyer Karim Khan as the new prosecutor of the International Criminal Court (ICC). The selection process had been closely watched by Venezuelan society with the knowledge that the new prosecutor would have an important role in advancing the preliminary examination of the Venezuelan situation.

At that time, the Office of the Prosecutor had already concluded that there was reasonable basis to believe that crimes against humanity were committed in Venezuela against opponents of the government in the context of the anti-government protests in the country since at least April 2017. In that moment, the Office was analyzing whether there were efforts at the national level to conduct genuine investigations, which would render the situation inadmissible before the ICC.

The following months were marked by communication efforts by the Venezuelan government aimed at showing a sudden premeditated advance in some emblematic cases that would fall under the Court’s jurisdiction. During the preliminary examination, the former Prosecutor, Fatou Bensouda, had been in communication with the Venezuelan State, which forwarded information to her office on national proceedings allegedly carried out with respect to facts that would fall under the Court’s jurisdiction.

During the first semester of 2021, the Venezuelan Government also attempted a series of appeals. On May 27th, 2021, the Venezuelan Attorney General informed that an appeal had been filed before the Chamber to exercise judicial control over the actions of the ICC Prosecutor’s Office with respect to the preliminary examination in process, based on Articles 93.10 and 46.2 of the Rome Statute. However, two months later these appeals were dismissed by Pre-Trial Chamber I, to which the situation is assigned.

Before leaving office, during an interview with France24, Bensouda announced that she had reached a conclusion on the preliminary examination, but had not been able to make it public due to the appeals attempted by the Venezuelan government. Therefore, the final decision on whether or not to open an investigation would be left to the new prosecutor Khan.

After taking office, Khan announced that he would visit Venezuela on October 31st, whose objective and impact generated a wide discussion in different sectors of Venezuelan society, including among victims’ groups.

During the closing of his visit to Venezuela, on November 3rd, 2021, Khan announced that he had decided to initiate a formal investigation into the crimes against humanity that occurred in the country. At the same event, the Prosecutor signed a memorandum of understanding with the Venezuelan Government in order to ensure state cooperation under the principle of positive complementarity. He also expressed that he is aware of the failures that exist in Venezuela and that they will work independently under the principles of legality and rule of law. It requested that the Office of the Prosecutor be given the opportunity to do its work independently and called for the work of the Court not to be politicized.

The Venezuelan Government expressed its disagreement with the decision to initiate an investigation. It stated that they consider that the requirements of article 53.1 of the Rome Statute to justify moving from the preliminary examination phase to the investigation phase have not been met. The decision to move to investigation represented a message of hope to the victims of the events of repression and persecution that have occurred in the country at least since 2017.

Scenarios for the advancement of the investigation in 2022

2022 thus begins with renewed hope on the part of the victims of crimes against humanity in the country and will be marked by a profound discussion by civil society and the international community on the future of the investigation and the implications this will have on the Venezuelan landscape. The following are some of the most important points to take into consideration as the research progresses during this year.

1. Information on the parameters of the opening of the investigation

While the important decision to open the investigation was obtained in 2021, the details of the parameters within which the ICC Office of the Prosecutor will create its investigative strategy are still unknown.

Two points are of particular relevance, the first concerning the time frame within which the investigation will be opened. It is important to recall that when a group of States Parties to the Statute referred the situation in Venezuela to the ICC Office of the Prosecutor, they requested that the examination be conducted from the events that occurred in 2014. However, the Office of the Prosecutor had decided to circumscribe the preliminary examination to the events that occurred since April 2017 and has not made known what will be the time frame on which the investigation will be conducted.

The second important element will be which crimes will be subject to investigation. The OTP had concluded during the preliminary examination that the information available at that stage provided a reasonable basis to believe that civilian authorities, members of the Armed Forces and individuals in favor of the Venezuelan Government have committed the crimes against humanity of imprisonment or other severe deprivation of physical liberty, in violation of fundamental norms of international law, torture, rape and/or other forms of sexual violence of comparable gravity and persecution of a group or collectivity with its own identity founded on political grounds. However, the crime of murder as a crime against humanity had not been included during the preliminary examination phases.

With respect to both elements, the OTP has been clear that it had decided to focus the preliminary examination on a subset of victims related to the treatment of persons in detention because it had at its disposal sufficiently detailed and reliable information regarding the specific elements of these crimes. However, both the time frame and the crimes under investigation could be expanded during the investigation phase to the extent that the prosecution team obtained sufficient information to meet the standard of proof at trial. The Office of the Prosecutor of the Court may currently, if it has sufficient evidentiary elements, include the investigation the events that occurred since 2014, and include the crime of murder as a crime against humanity.

2. The application of the principle of complementarity will continue to be subject to analysis and discussion.

The Rome Statute system does not aim to substitute domestic courts for the jurisdiction of the ICC, which is why it establishes the priority or primacy of national jurisdiction. Because of this, the jurisdiction of the Court is complementary to national jurisdictions and can only act when the State is unable or unwilling to prosecute those responsible for Rome Statute crimes.

The work of the ICC’s Office of the Prosecutor must always strike a balance between respecting the normal functioning of national systems for prosecuting and punishing those responsible for crimes and, at the same time, fulfilling the mission of ensuring that crimes of concern to the international community as a whole do not go unpunished. This principle of complementarity is not discussed exclusively during the preliminary examination but is transversal to the entire process. This implies that during 2022, and as the investigation progresses, the OTP will continue to assess whether the Venezuelan judicial system has the capacity to investigate and prosecute those responsible for the crimes against humanity committed and whether they are indeed conducting genuine trials.

In this regard, the memorandum of understanding between the ICC Office of the Prosecutor and the Venezuelan government expresses support for the judicial reforms necessary for valid trials to be carried out under the principle of complementarity. Civil society organizations have warned that the decisions taken in some emblematic cases to advance criminal proceedings at the national level do not meet international standards for the investigation and prosecution of crimes against humanity. Amongst other irregularities, in these cases crimes of sufficient gravity were not charged and the chains of command were not investigated. In order to meet the minimum standards necessary to carry out this type of process structural changes are required in the Judiciary. This has also been confirmed by the Fact-Finding Mission on Venezuela in its latest report of September 2021.

As a consequence of this principle of complementarity, which is transversal to the entire process, there are two specific remedies that can be attempted by the State, or when an alleged perpetrator has already been identified, to review the admissibility of the situation or the case. These remedies are contemplated in Articles 18 and 19 of the Statute and may be attempted at different times during the investigation.

In order to request the application of article 18 of the Rome Statute, the State has to inform the Court that it is investigating individuals with respect to the crimes which would fall within the Court’s investigation. If the State requests so, the Prosecutor shall defer to the State’s investigation of those individuals unless the Pre-Trial Chamber, decides to authorize the investigation.

On April 21st, the Office of the Prosecutor notified the Pre-Trial Chamber that it had received a response by the Bolivarian Republic of Venezuela under article 18(1) of the Rome Statute whereby Venezuela “confirms that it is investigating or have investigated its nationals or others within its jurisdiction with respect to alleged punishable acts against human rights,” and “requests the Office of the Prosecutor to formally refrain from the investigation in favour of the actions carried out by the appropriate national authorities of Venezuela”.

However, the Prosecutor informed the Chamber that Venezuela did not provide new information that would show that it has indeed conducted or is conducting genuine domestic procedures. The nine reports used as the basis for the request for postponement are the same as those sent during the preliminary examination, which were reviewed by the Office of the Prosecutor and considered insufficient to prevent the initiation of an investigation.

Taking this into account, the Office of the Prosecutor indicated that it will request authorization from the Pre-Trial Chamber to continue with the investigation of the situation in Venezuela I. This decision shows that, according to Prosecutor Khan, so far, the Venezuelan Judiciary has not properly investigated the crimes against humanity that occurred in the country. 

3. Second visit of the OTP and the opening of a field office of the Prosecutor in Venezuela

On the 31^st of March 2022, ICC Prosecutor Karim Khan announced the conclusions of a three-day visit to Venezuela, during which he held a working dialogue with Nicolás Maduro and other Venezuelan officials. The Prosecutor stated that during the visit “significant steps were taken to deepen cooperation and accelerate their independent work in relation to the situation in Venezuela following the decision to open an investigation in November 2021”.

The most relevant announcement was the opening of a field office in the city of Caracas. The decision was taken under the Memorandum of Understanding signed with the government of Nicolás Maduro in November 2021.  The field office of the Prosecutor in Caracas will have among its powers: (i) the training of public officials; (ii) the provision of specialized advice with a view to strengthening relevant domestic legislation; and (iii) technical support to identify other areas for improvement at the institutional and legislative levels.  All this to strengthen national jurisdiction.

The existence of an office of the Court in Venezuela represents an opportunity to generate changes in the national investigation of crimes against humanity. It can have a positive impact on the investigation to the extent that it is implemented in a transparent manner and in cooperation also with non-governmental actors. The success of the office will also depend on the diligence on the part of the Prosecutor to distinguish between reforms that are made by the government as a façade to gain time and those that represent a real progress in the institutionalization of the judiciary and demonstrate the willingness of the State to investigate the crimes against humanity that occurred in the country.

4. Activities of the OTP, collection of evidence and obligation to cooperate

The move to investigation will allow the Office of the Prosecutor to use its resources to obtain various pieces of evidence about crimes against humanity that occurred in the country. During this phase, the OTP gathers and examines evidence, interviews persons under investigation, victims and witnesses, in order to find evidence of the commission of crimes against humanity and to identify possible suspects.

As the investigation progresses, the Prosecutor’s Office may also determine whether there are grounds to bring charges against specific persons who bear individual responsibility for the crimes against humanity under investigation. If so, it would request the Pre-Trial Chamber to issue summons or arrest warrants.

In the conduct of the investigation, Venezuela has an obligation to cooperate with the Office of the Prosecutor of the Court. In principle, it has a general duty to cooperate in relation to the investigation and prosecution of crimes within the jurisdiction of the Court in accordance with Article 86 of the Statute, which provides that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in relation to the investigation and prosecution of crimes within its jurisdiction”.

During his last intervention on Venezuela in December 2021, the Prosecutor recalled that complementarity is a key aspect and a fundamental basis of the Rome Statute system and therefore his office will make the necessary efforts to ensure State cooperation in the framework of the investigation. State cooperation may be essential in obtaining evidence or surrendering persons. It is also important to mention that, in the Venezuelan situation, not only Venezuela but all other States Parties have the obligation to cooperate with the Court in the arrest and surrender of persons, as well as the different forms of judicial assistance provided for in the Statute. In addition to requesting cooperation and assistance from States and international organizations, the Office of the Prosecutor may also send investigators to the field at the invitation of the State.

5. Victims’ participation in the process

With the opening of the investigation, a new dynamic of interaction between victims and the Court begins. Victims may have various roles during the process; they may continue to submit information and evidence, they may be contacted to participate as witnesses in a specific case, they may submit observations and opinions when permitted by the Chamber, and they may also request to be considered for reparations in the event of a conviction at the end of the process.

The manner in which victims may participate in the proceedings is not determined in detail in the Statute or in the rules of procedure and evidence, and will be determined on a situation-by-situation basis. The broad wording of the provisions on victims’ participation in the ICC’s constituent documents suggests that the drafters intended to leave broad discretion to the judges to shape the Court’s scheme of victims’ participation.

The possibility for victims to participate during the different stages of the proceedings is based on Article 68 of the Statute, which states the following:

The Court shall permit, at such stages of the trial as it considers appropriate, the views and observations of victims to be presented and taken into account if their personal interests are affected and, in a manner, not prejudicial to or inconsistent with the rights of the accused or a fair and impartial trial. Legal representatives of victims may submit such views and observations when the Court considers it appropriate and in accordance with the Rules of Procedure and Evidence.

There is no specific time limit within which victims may participate in the proceedings, but it is left to the prerogative of the judges to decide as they see fit. In order to be allowed to participate in the proceedings, victims must submit their request in writing, preferably before the beginning of the phase of the proceedings in which they wish to participate.  Depending on the progress of the investigation, further information on the possibility of applying as victims and possibly the publication of a victim form in Spanish could be available as early as 2022.

6. Significance of the renewal of the mandate of the Fact-Finding Mission on Venezuela

In September 2022, the Human Rights Council will decide whether to renew the mandate of the Fact-Finding Mission on Venezuela. The Mission was established on 27th September 2019 by the UN Human Rights Council for a period of one year to assess human rights violations committed in the country since 2014.

In 2020, the Mission found reasonable grounds to believe that, since 2014, Venezuelan authorities and security forces planned and executed serious human rights violations, some of which constitute crimes against humanity. In 2020, its mandate was extended for a period of 2 years and recently, on September 16th, 2021, the Mission published its second report on the role of the judiciary in the face of human rights violations.

With the start of the investigation on Venezuela at the ICC, it is necessary to understand the importance of the renewal of the Mission’s mandate and how both institutions are complementary in the search for the truth and the fight against impunity for what happened in the country.

While it is true that Prosecutor Khan must pursue his own independent investigation in accordance with Article 54 of the Rome Statute, he can rely on the work of the Mission to pursue lines of investigation and obtain information on specific victim cases, analysis of the command structures of those responsible and evidentiary elements. Indeed, in other situations under investigation at the ICC, such as in Myanmar, Darfur, Libya, Côte d’Ivoire, Central African Republic II and Guinea, the Office of the Prosecutor has used information from fact-finding missions or commissions of inquiry established by the United Nations.

If its mandate is renewed, the Mission’s work over the next year may be of vital importance to the OTP’s investigation.

7. Striking a balance between speed and strength of evidence in the investigation

The hope of the victims to obtain justice for the serious crimes they have suffered and the prevailing impunity in the country also brings with it a growing attention to the ICC process and a need for the ICC to act quickly. This call for progress in the Venezuela I situation to be made more quickly was already evident during the preliminary examination, to which one of the main complaints was the time it had taken. This disagreement did not necessarily have valid arguments, since the examination was concluded in less than the average time for this phase.

With the start of the investigation, this call for progress to move forward quickly may be a constant. It is therefore important to remember that the priority must always be to strike a balance between the time spent and the strength of the investigation and prosecutorial activity in gathering evidence and building the case. A quick investigation is not necessarily one that will lead to a finding of liability, especially considering that the standard of proof required to prove the commission of crimes and the criminal liability of suspects increases as the process progresses. During the investigation phase, the greatest efforts must be directed towards having sufficient evidence to demonstrate before the corresponding Chambers that the State authorities committed crimes against humanity in Venezuela and to demonstrate that certain individuals are the ones who bear the greatest responsibility for such acts.

8. Understanding the Court’s true role in the Venezuelan political crisis

On December 6th, 2021, during the Assembly of States Parties to the Rome Statute, Prosecutor Karim Khan briefly referred to his decision to open an investigation into the Venezuela I situation. Although brief, his intervention sent a clear message about the importance of managing expectations about the development of the investigation and its eventual impact on the resolution of the Venezuelan political crisis.

The Prosecutor recalled that his work will be done independently and that his priority will be to follow the evidence and determine whether the crimes against humanity under investigation were committed and who is responsible. Of utmost importance is that the Prosecutor used the occasion to reiterate that his office “is not in the business of regime change, it simply and more exclusively seeks to address impunity and investigates independently”.

The Prosecutor had previously warned that “although we are not unaware of the political discourse and divisions prevailing in Venezuela or the regional context, it is important that my Office has the necessary space to carry out its work” and that its “work will take place independently and outside of any political agenda”, for which reason they would not see “with good eyes any attempt to use the opening of the investigation for political gain or politicize the independent work of my Office”.

The Prosecutor’s message was made in a context of high political tension at the national level and recalls the importance of managing the expectations of the Venezuelan society in general and of the victims’ groups by giving clarity on what can be expected from the work of the Court but above all what is outside its scope of work. When there is a political and humanitarian crisis of such magnitude as the Venezuelan case, a transitional justice system with holistic strategies is required, incorporating integrated attention to individual prosecutions, reparations, truth-seeking, institutional reform and investigation or a properly conceived combination thereof. Prosecution is only one tool in the transitional justice toolkit.  While the ICC’s investigation into what happened in Venezuela can have an important impact on determining what happened and, in a good scenario, on the responsibility of some individuals, it is important to understand its limitations in resolving the political and humanitarian crisis in Venezuela, which requires a transformation beyond the Court’s reach, as well as the application of other transitional justice tools.